Earlier this month, the US Copyright Office held a two day public roundtable on the issues of orphan works and mass digitization.

During one of the panels, a brief side debate broke out over what the purpose of copyright law was—particularly, what the proper role of the public benefit is and how much weight it should be accorded.

The first participant essentially quoted the Betamax decision’s description of public benefit. 1Sony Corp v. Universal City Studios, 464 US 417, 429 (1984). There the Supreme Court said:

The copyright law, like the patent statutes, makes reward to the owner a secondary consideration… The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.

In response, a panelist refuted characterization of reward to the owner as a “secondary consideration”. Disagreement arose. A separate panelist tried to make peace by remarking that both panelists’ explanations of the public benefit come from Supreme Court opinions. Maybe this is a case of agreeing to disagree.

But consider this: the Supreme Court refutedSony‘s description of the public benefit of copyright in the much more recent Eldred v. Ashcroft. There, the majority said:

JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law, understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.” JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

Well sure, the copyright skeptic might respond, that’s all well and good. But the Supreme Court only has authority over the law; it’s ruminations on matters of philosophy are not binding.

But consider this: Eldred‘s description of the public benefit is, as the Court notes, a direct descendant of the justification offered by James Madison, the very drafter of the Constitution’s Copyright Clause.

The description of the public benefit in Sony, on the other hand, comes from the misquotation of a state sales tax case.

Yes, Sony directly quotes Fox Film Corp. v. Doyal, a 1932 Supreme Court case, about the “sole interest of the United States.” In Fox Film, a film company sued to prevent the state of Georgia from collecting state tax on its income from licensing films. The film company argued that copyrights are “instrumentalities” of the federal government, so any income derived from them are immune from state taxation.

The Court disagreed. The federal government doesn’t retain any possessory or ownership interest in a copyright it secures. A copyrights is not a “franchise or privilege to be exercised on behalf of the Government ” Instead, “Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.”

So when the Fox Film Court speaks of “the sole interest of the United States”, it is merely making the distinction that the federal government does not retain any right or title in a copyright such that license income would be exempt from state taxation. But the Court would later take this quote out of context, 2United States v. Paramount Pictures, Inc., 334 US 131, 158 (1948). and Sony perpetuates this error. Indeed, the above quote from Fox Film about the advantage to the public is more consistent with Eldred‘s explication of the public interest than Sony‘s.

So what is the point here?

Copyright skeptics will often proclaim that copyright law must serve the public interest. But that is not controversial. Of course it should serve the public interest; all laws should serve the public interest.

What is overlooked is how copyright serves the public interest. Skeptics will focus on how exceptions to and limitations on copyright further the public interest. Missing is the inherent public interest in copyright, in preserving incentives to create and disseminate expressive works.

Like any free market, enabling a free market in creative works tends toward the public good. Copyright is the economic building block of this market, allowing voluntary transactions to occur and private ordering to emerge. It encourages investment in creating and distributing the types of works that advance society and enrich our lives, the types of works that shouldn’t be considered an afterthought.

Some will suggest that creators will create and disseminate works even without copyright protection. This counterfactual is unconvincing. That there are creators who will create and distribute their works despite adequate copyright protection is a demonstration of human resilience, not an affirmation that society can continue to benefit while artists, authors, and creators are undermined.

So yes, let us celebrate the public benefit of copyright, let us celebrate how the profit motive serves as the engine ensuring the progress of science. But let’s not confuse the short term gains of ignoring copyright with the public benefit, or focus solely on the benefits of copyright’s limitations at the expense of the public benefit of protecting creators’ rights.

38 Comments

As you know, I was the panelist who refuted the assertion (made by a university librarian whose institutions I am willing to bet benefit enormously from the largesse of anti-copyright activist corporations) that the primary purpose of American intellectual property law is to protect public access rights to information and expression. While I have been a freedom of information advocate and activist for my entire 30 year legal career —I co-founded the James Madison FOI Project two decades ago– I could not abide this ludicrous misstatement of law and jurisprudence. In the instance about which you speak, I chose, rather than to quote the Eldred case in response to the speaker’s reliance on the Betamax holding, to cite the eloquent and definitive assertion of Justice O’Connor in Harper and Row v. The Nation. Far from being anathema to frees speech and freedom of information principles, Justice O’Connor wrote, copyright protection is the very “engine of free expression.” The system won’t work any other way.

It continues to trouble me how nearly unanimously and steadfastly the community of university educators in the United States still refuses to acknowledge the simple, ancient truism that creators of intellectual property need to be paid for their labors if those labors are to be sustainable as a crucial segment of the marketplace of ideas and expression. I once publicly asked a very famous professor and leading proponent of the “music wants to be free” school if he would be willing to teach and lecture around the country for free, foregoing his primary source of income in favor of placing a tip jar on his desk or podium, which would be filled or left empty depending upon the appreciation or lack thereof of the audience. I am still waiting for a response these many years later, but I am again willing to bet that the answer rattling around his brain was and is as follows: “Are you insane? I need to get paid. And at the market rate (plus stock options if my benefactor is willing).”

It’s more likely that “famous professor” is saying, “No way will I lecture [my argument for free] because an objection louder and faster than the Internet button pushers will disable everyone, nearly a billion users and computer bots, from uploading a copy of a material object, and then downloading a copy of a copy of that material object (i.e.: counterfeiting), if the US Congress hears that specific reality during a committee (and then broadcast as a headline on CBS News, and/or The O’Reilly Factor). As of this time, it’s claimed by the Silicon Valley money stealers as “sharing”, but the courts already have it in case-law as non-protected “reproductions”.

I’m not sure why this is controversial. It’s really very simple. The purpose of copyright law is the advancement of the “arts” (not looking to start a debate as to the meaning or scope or correctness of that term). Profits for “authors” (again, not looking to debate the term) is not the purpose of the law, it is a means to the end of advancing the arts. There can be no question it is a critical means. But it is always a means, not an end of itself.

Accordingly, the determination of whether, and to what extent, copyright protection should be afforded in any particular domain should be based on the societal goal of advancing the arts: a balancing of the (incremental) benefits to encouraging creation vs. the (incremental) detriments of limiting others from exploiting those creations.

The essential problem we have with copyright policy is that (as in many, many domains) the policy-making is dominated by corporatism and special interests, not by objective evaluation of what would maximize the proper constitutional purpose of advancing the arts.

That we will have more and better music if music is subject to copyright really shouldn’t be controversial among serious observers. On the other hand, it also shouldn’t be controversial among serious observers that extending the terms of those copyrights from something like the original 28 years to the current 95/life+70 years can be expected to have essentially zero incremental impact in terms of encouraging additional creation of music. Such can only be justified on the basis of some argument of author entitlement. But profits for authors are a means, not an end or an entitlement, and term extensions cannot be properly justified by such.

Likewise, while the profit motive is a critical factor in encouraging creation, not all creative domains require copyright protection in order to create sufficient profit motivation. To use an example from another discussion, it’s hard to see how architecture copyrights are likely to actually spur incremental creation in the domain of architecture. Was there really a problem whereby would-be architects couldn’t profit sufficiently from their work, merely for lack of copyright protection, that they abandoned or never pursued that profession, or were less productive, as a result?

The purpose of copyright law is the advancement of the “arts” (not looking to start a debate as to the meaning or scope or correctness of that term).

The way I learned the IP Clause, “science” refers to copyrights and “useful arts” refers to patents.

The Supreme Court confirmed this two years ago in Golan:

Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protection. U.S. Const., Art. I, § 8, cl. 8. Perhaps counterintuitively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts.”

I’m not sure why this is controversial. It’s really very simple. The purpose of copyright law is the advancement of the “arts” (not looking to start a debate as to the meaning or scope or correctness of that term). Profits for “authors” (again, not looking to debate the term) is not the purpose of the law, it is a means to the end of advancing the arts. There can be no question it is a critical means. But it is always a means, not an end of itself.

The fact that you put “arts” and “authors” in quotes made me think you were quoting the IP Clause. If you think that the word “arts” in the IP Clause refers to copyrights, then it shows that you are unfamiliar with the Clause itself. I understand that you are focused on substance, but if your grasp of its text is so attenuated, it’s safe to assume that your analysis of its substance is similarly suspect.

Devlin, it actually doesn’t follow at all. Even if I weren’t aware of the general view as to how those terms were swapped at the time, having them reversed would hardly demonstrate a lack of understanding of the basic meaning of the clause (because the usages are simply swapped).

I’m also not sure why you would think that single words being quoted were intended as isolated quotations of the copyright clause, particularly since each was followed by a parenthetical that clearly indicated awareness of the fact that the meaning of the term could be subject to debate. In that context, it should be obvious that I was aware of the disparity between the meanings of the term at the time the clause was written, and the meaning presently, and that I was using the quotes as way to indicate such.

What’s more, we both just participated in the discussion on last Friday’s end-notes post, relating to the Sean O’Connor article Terry cited, and the distinction between fine arts vs. “useful Arts” (note the capitalization — that IS a reference to the constitution!). That article specifically addressed issues of interpreting this clause, and discussed the disparity in meanings of the terms it uses in its introduction. (i.e., if one reads anything at all from that article, they’re made aware of the issue.) Given that, on top of the above, why you would think that I was unaware of such seems baffling….

I’m also not sure why you would think that single words being quoted were intended as isolated quotations of the copyright clause . . . .

You were talking about the purpose of copyright and your view of the means vs. the ends. You were talking about the IP Clause. When you’re talking about the IP Clause and putting words that actually appear in the Clause in quotes, it certainly appears like you’re quoting the Clause.

Devlin–
A point for effort in avoiding the issue but none for success, I’m afraid. Also, it’s not the IP clause, it’s the copyright and patent clause. Most federal “IP” law tends to fall under the commerce clause, actually: trade secrets are the biggest branch, followed by trademarks. Plus a host of smaller bodies of law, eg design rights, bootleg recordings, etc. And some things the federal government doesn’t yet do, like publicity rights (though trademarks can do a little work there)

Were there an IP clause, one would expect it to handle more than the relatively small domains of just copyrights and patents.

This is why it’s usually a dumb move to even use the term Intellectual Property. It covers too many things with too little relationship between them and is too misleading which leads to it being too divisive.

You know what Greenfield meant, so for the sake of a nice, civilized discussion, kindly stop being a smart ass and either try to rebut him, support him, make your own point, or be quiet.

No, actually. While I respect the work that was done there, I never really kept up with it, and don’t recall ever having posted anything there.

“Read Golan v. Holder, 132 S.Ct. 873, 887-88 (2012) again.”

Well, taking your advice, I did. And right there at the end of page 887, there it was: “Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words.” So thanks for the assist, Ed; it’s nice to have a cite for what the clause is properly called.

“That’s the SJC, not a creative commons directive. ”

No, the SJC is the Supreme Judicial Court, the highest level state court of Massachusetts. And since the early 19th century, when Maine was split off from Massachusetts as part of the Missouri Compromise, Maine has also had an SJC.

I don’t have a Blue Book handy at the moment, but for casual use at least, I’d suggest either SCOTUS or S.Ct. as abbreviations for the federal Supreme Court. (Though technically S.Ct. is used for a reporter, as you no doubt know from your helpful cite)

As for Creative Commons, I’ve never been a fan, actually. I’d rather see better reforms to the law itself. Form licenses are not a good solution to the problems in the law, IMO.

Anyway, this was an amusing diversion but I’ve yet to see a decent reply to Greenfield, and that’s what I’d really like to see.

Agreed. It is amazing that despite having explicitly tried to avoid a debate over the semantics of a few terms (indeed, perhaps because of having explicitly tried to avoid such), rather than a discussion of substance, we now have 8 comments (9 including this one) relating to semantic debates, and not a single response relating to substance.

I think you should infer that I was completely correct in stating that the issue was simple and that my conclusions shouldn’t be controversial among serious observers. 😉

(Btw, I would note that Sean O’Connor referred to the clause as the “IP Clause” in his article. I’d conclude that “IP Clause” isn’t an unreasonable name to use, the fact that not all IP law emanates from it, notwithstanding.)

we now have 8 comments (9 including this one) relating to semantic debates, and not a single response relating to substance.

You say that copyright policy should be based solely on an “objective evaluation of what would maximize the proper constitutional purpose of advancing the arts” through “a balancing of the (incremental) benefits to encouraging creation vs. the (incremental) detriments of limiting others from exploiting those creations.” So are you saying that the only benefit permissible under the Copyright Clause is the encouragement of creation? Why, for example, couldn’t it also be permissible to encourage dissemination?

I’m curious too why you think the Copyright Clause demands such a strict utilitarian view. Why are other views, such as Locke’s labor theory or Hegel’s personality theory, necessarily wrong? Do you think the Copyright Clause forecloses the possibility that copyright policy can be shaped in part by noneconomic benefits to authors? I don’t understand how you think the Copyright Clause requires only the consideration of the public welfare. Can’t we consider an individual author’s welfare too, even if what’s good for him isn’t necessarily what’s best for everyone else? Don’t human beings have fundamental interests that merit recognition and protection?

The problem I have with the strict utilitarian view is that it denies fundamental interests such as personal autonomy, independence, security, and dignity. I don’t see how the Copyright Clause limits us from considering things other than maximizing the public welfare. Nor do I think, if you look at the history of our copyright laws, that this strict utilitarian view has ever been the actual practice. For example, copyright protects many works the creation of which does not depend on copyright protection. And copyright duration has always been one-size-fits-all for different types of works. The Framers held a plurality of views on the purpose of copyright, and courts rarely apply economics when deciding copyright cases. It seems to me that there’s always been more to copyright than just economic considerations.

Nor do I really understand how this economic maximization is supposed to be done. The problems of utilitarianism are well known. How do you measure happiness or welfare? How do decide which factors matter and which ones don’t? How do you compare disparate factors? Moreover, don’t you think it’s morally obtuse to think the only value that matters is the value the author creates for everyone else while ignoring the author’s innate human dignity? I just don’t see where the Copyright Clause says that authors are to be treated solely as a means of maximizing public welfare and never to be recognized as human beings who deserve to be treated as ends in themselves.

Devlin–
“So are you saying that the only benefit permissible under the Copyright Clause is the encouragement of creation? Why, for example, couldn’t it also be permissible to encourage dissemination?”

Well, for my part, I’d say that the promotion of progress via copyright entails encouraging both the creation and publication of works, while simultaneously imposing as minimal a burden as possible on the public, both in terms of the scope and duration of copyright. Encouraging publication (which I feel should also encompass public performance and display) is essential — indeed, we shouldn’t grant copyrights to works which are not published and are not intended to be in a reasonable timeframe, and we should impose a strict deposit formality to aid in publication — but if we were to treat it as a goal all by itself, we’d probably wind up with something like the old English patent system, in which a patent might be granted not for inventing an invention, but merely for introducing it to England. And the language of the clause would prohibit such a thing. Which is incidentally why the Rome Convention’s broadcasting right would be unconstitutional here.

“I’m curious too why you think the Copyright Clause demands such a strict utilitarian view. Why are other views, such as Locke’s labor theory or Hegel’s personality theory, necessarily wrong?”

As theories, they do a worse job of explaining the facts. And they’re incompatible with more important legal doctrines, namely free speech.

“Do you think the Copyright Clause forecloses the possibility that copyright policy can be shaped in part by noneconomic benefits to authors?”

I don’t. There are numerous benefits which authors enjoy, and which incentivize them to create and publish works, and of which, copyright is only one, and often not the most important one. Ideally, if an author were sufficiently incentivized to create and publish just due to those other benefits, it would be an act of waste against the public to grant him a necessarily superfluous copyright. We should always remain cognizant of these other incentives when crafting copyright policy, so as to allow these ‘natural’ incentives to do as much as possible, which allows us to water down copyright so that it is only present when it absolutely needs to be. (See above re: imposing as little burden on the public as possible)

Of course, a perfect copyright law would require the Copyright Office to be staffed with mind readers. So the next best thing is to have a strict system of formalities — fees, registration, and deposit — to act as a hurdle for authors to cross. The hurdle needn’t be large; registration and deposit are what they are, but the fee could be a token dollar for all I care. The point is that copyrights on published works should not be automatic. If the author is willing to take even a small step to claim them, it’s probably safe to assume that copyright had an incentivizing role and is appropriate to grant. If the author doesn’t care, well then why should anyone else? And I’d note that this worked pretty well in the US for a long time, never failed us, and is really our traditional form of copyright.

“I don’t understand how you think the Copyright Clause requires only the consideration of the public welfare.”

Because the public is shouldering the burden of copyright, of course! Why should they suffer the embarrassment of copyright if it doesn’t even produce a benefit for the public greater than the harm necessarily caused by restricting their freedoms with regard to the work? To look at it another way, I could say that the Taxing and Spending Clause empowers Congress to give me a billion dollars. It would certainly do wonders for my personal financial situation. But everyone else would have a most excellent objection that it was wasteful of public tax dollars to just give me a big check without the public getting at least something in return that was worth it. Just as the government must be a faithful and responsible steward of the public treasury, so too must it be responsible when it limits our freedom to copy, to distribute, to make derivative works, to display, and to perform. These are the birthrights of all people, and they’re valuable. They should not be wasted.

“Can’t we consider an individual author’s welfare too, even if what’s good for him isn’t necessarily what’s best for everyone else? Don’t human beings have fundamental interests that merit recognition and protection?”

I’m sure that they do, but copyright is not one of them.

“The problem I have with the strict utilitarian view is that it denies fundamental interests such as personal autonomy, independence, security, and dignity.”

Nonsense. We’re not talking about utilitarianism being applied in every walk of life. We can use it for copyright without needing to use it elsewhere, if that’s what best suits us. Authors’ autonomy and independence isn’t affected by a utilitarian copyright. Their security — I assume you mean financial security — is protected, but the genius of copyright is that this is left to the market, and is not guaranteed; a flop can have just as much of a copyright as anything else, but it won’t matter much. And a protected right to dignity is largely incompatible with a free society in which everyone can have their say, and it’s up to listeners to choose who to believe.

“Nor do I think, if you look at the history of our copyright laws, that this strict utilitarian view has ever been the actual practice.”

Well there’s always been corruption, of course, but a theory of copyright as what the highest bidder demanded isn’t very satisfying to anyone, no matter how accurate it might be. Utilitarianism is the next best, and therefore, most acceptable, theory.

“And copyright duration has always been one-size-fits-all for different types of works.”

OTOH, this isn’t true of patents, which share the same Constitutional language and raison d’etre. There’s certainly no reason why copyrights have to have a uniform duration. In fact, if I were rewriting the section on term length, that’s precisely one of the things I’d change.

“Nor do I really understand how this economic maximization is supposed to be done. The problems of utilitarianism are well known. How do you measure happiness or welfare? How do decide which factors matter and which ones don’t? How do you compare disparate factors?”

Well, I’m aware of one serious paper on the subject, which can be found here: http://rufuspollock.org/papers/optimal_copyright.pdf Sadly, the math is beyond me, but I’d love to see more research done along these lines. As for how we measure, this is actually fairly easy. It’s quantity. Artistic quality is subjective, but as a rule of thumb, the more different works there are, the more works of good quality there will tend to be. So, we encourage the creation of as many works as possible, paying close attention to the diminishing returns of increased term lengths and rights (which can be improved by varying the duration and scope of copyright by types of work), and we look for a sweet spot where we get the most works for the least grant of rights. I don’t expect that we’ll wind up with a function that anyone can just type into a calculator, but actually trying to do this, rather than just giving the publishing industry whatever they ask for seems likely to produce some sort of improvement. And if it doesn’t, I’m happy to go back to the current way of doing things. I’m a pragmatist, after all.

“I just don’t see where the Copyright Clause says that authors are to be treated solely as a means of maximizing public welfare and never to be recognized as human beings who deserve to be treated as ends in themselves.”

Funny, I don’t see where it says that authors are more important than, more deserving than, and just plain better than, everyone else. People don’t need copyrights to be fully actualized human beings. The whole thing is just an fancy way of dangling a carrot in front of a donkey in order to get it to do what we want.

Well, for my part, I’d say that the promotion of progress via copyright entails encouraging both the creation and publication of works, while simultaneously imposing as minimal a burden as possible on the public, both in terms of the scope and duration of copyright.

Do you think the Constitution demands this minimization of the burden?

Encouraging publication (which I feel should also encompass public performance and display) is essential — indeed, we shouldn’t grant copyrights to works which are not published and are not intended to be in a reasonable timeframe, and we should impose a strict deposit formality to aid in publication . . . .

I think those are reasonable suggestions, but do you think the Constitution demands them?

As theories, they do a worse job of explaining the facts. And they’re incompatible with more important legal doctrines, namely free speech.

You think Hegel is incompatible with free speech? I think free speech is one of the primary ways we recognize our personality.

I don’t. There are numerous benefits which authors enjoy, and which incentivize them to create and publish works, and of which, copyright is only one, and often not the most important one. Ideally, if an author were sufficiently incentivized to create and publish just due to those other benefits, it would be an act of waste against the public to grant him a necessarily superfluous copyright.

So you think noneconomic benefits are permissible, but only if they are incidental to the incentivization function. In other words, never for their own sake. Is that right?

Because the public is shouldering the burden of copyright, of course! Why should they suffer the embarrassment of copyright if it doesn’t even produce a benefit for the public greater than the harm necessarily caused by restricting their freedoms with regard to the work?

The public doesn’t just shoulder the burden, it gains many benefits too—even while the copyright is in effect. But I don’t see why you think the public should never bear any more burden than is absolutely necessary for incentivizing creation and dissemination. As long as the copyright system on the whole promotes progress generally, why couldn’t the recognition of certain fundamental rights of authors be a part of that system? The view that authors are just members of the Borg collective working for the common good troubles me. They’re human beings too, and they have dignity interests that deserve protection.

I’m sure that they do, but copyright is not one of them.

Where in the Copyright Clause does it say that the fundamental rights of authors can’t be recognized and protected? It seems to me the real power in the Clause is the power to secure exclusive rights. How does one recognize the fundamental rights of authors? By securing to them exclusive rights. I don’t see any inconsistency between the natural law theories of copyright and the Copyright Clause itself.

And a protected right to dignity is largely incompatible with a free society in which everyone can have their say, and it’s up to listeners to choose who to believe.

How is it incompatible? I think the idea that authors are merely robots working for the common good is incompatible with a free society.

Well there’s always been corruption, of course, but a theory of copyright as what the highest bidder demanded isn’t very satisfying to anyone, no matter how accurate it might be. Utilitarianism is the next best, and therefore, most acceptable, theory.

But the fact remains that copyright policy has never been formulated solely on some utilitarian function.

OTOH, this isn’t true of patents, which share the same Constitutional language and raison d’etre. There’s certainly no reason why copyrights have to have a uniform duration. In fact, if I were rewriting the section on term length, that’s precisely one of the things I’d change.

The fact that copyright duration is one-size-fits-all shows that it’s not based on maximizing some secret function. It’s based, in practice, on noneconomic considerations.

As for how we measure, this is actually fairly easy. It’s quantity. Artistic quality is subjective, but as a rule of thumb, the more different works there are, the more works of good quality there will tend to be. So, we encourage the creation of as many works as possible, paying close attention to the diminishing returns of increased term lengths and rights (which can be improved by varying the duration and scope of copyright by types of work), and we look for a sweet spot where we get the most works for the least grant of rights. I don’t expect that we’ll wind up with a function that anyone can just type into a calculator, but actually trying to do this, rather than just giving the publishing industry whatever they ask for seems likely to produce some sort of improvement. And if it doesn’t, I’m happy to go back to the current way of doing things. I’m a pragmatist, after all.

To me, this is just treating the author as a member of the Borg collective. You’re right. There is no function we can apply in our calculators, and there never will be. I think utilitarianism sounds good on the surface, but the reality is that underneath it all we still have to make the same value judgments. Call me a realist.

Funny, I don’t see where it says that authors are more important than, more deserving than, and just plain better than, everyone else. People don’t need copyrights to be fully actualized human beings. The whole thing is just an fancy way of dangling a carrot in front of a donkey in order to get it to do what we want.

The Clause literally says Congress can give benefits to authors. The Framers clearly thought that authors were more important than and more deserving than everyone one. The exclusive rights don’t go to everyone else. They go to authors.

I’m curious too why you think the Copyright Clause demands such a strict utilitarian view. Why are other views, such as Locke’s labor theory or Hegel’s personality theory, necessarily wrong?

We’ve had this discussion before, and not very long ago. 😉

There are three basic things that tell us that the Constitutional purpose of copyright is to maximize progress, for societal benefit, rather than to reward authors.

First, the clause explicitly tells us this: “To promote the Progress of Science and useful Arts….” I realize that you would dismiss this as mere “preamble,” but I don’t believe there’s much of an argument to support that it is without meaning. There’s no other enumerated power where the phrase immediately following “To” is merely superfluous preamble. The grant of power is specifically for the stated purpose of promoting progress, not for rewarding authors or inventors. Arguably, the grant of power actually is “to promote progress,” and everything that comes after the “by” is merely a limitation on that power. There actually are a few other powers that take that form. And the context the clause arises in (per the other two items, below) confirms the relevance of this explicitly-stated purpose.

Secondly, the fact that securing this “exclusive Right” for authors and inventors is a power of Congress, in the first place, tells us that these rights were viewed as government-granted rights, rather than one of the “unalienable Rights” that are “endowed by their Creator.” The framers did not make unalienable rights subject to Congressional discretion, as enumerated powers that Congress might or might not elect to exercise.

Finally, the fact that the clause limits the grant of such rights to “limited Times” confirms that the grant was clearly viewed as a means to the end of promoting progress.

And btw, while I can appreciate referring to this colloquially as utilitarian in approach, this is not actually utilitarian, because the imperative is not to maximize all good, but very specifically to maximize progress. When I talk of a balancing of benefits and detriments, it is specifically the benefits of encouraging creation—and yes, dissemination—against the detriments of limiting exploitation by others for some period of time. It is not balancing the interests of the author, directly, against the rest of society.

There are all kinds of theories one could construct to justify copyright, but the question is what the Constitutional purpose of such is, and I don’t see where there’s basis for concluding that Constitution is concerned with anything other than the societal benefit of promoting progress.

Hence, the granting of exclusive rights, and profits for authors, is a means, not an end of itself.

There can be no question that, as Terry asserted and as I agreed, the profit motive can often be critical to encouraging progress, but it is critical as a means. It is not an end of itself.

To leverage Terry’s analogy that the profit motive is the engine of progress, an engine is not an end of itself. It is a means to achieve some other goal, such as in a car, it is a means to propel the car, to get people or things from point A to point B. Getting from point A to point B is the end. The engine is merely a means to that end.

Nor do I really understand how this economic maximization is supposed to be done.

I didn’t claim it was easy, or that it could ever be done perfectly, or even that Congress must attempt to do it perfectly. To my view, it is quite acceptable for Congress to make policy keeping in mind pragmatic considerations, and for example, preferring simplicity over complexity.

What I said is that policy-making should be driven by objective evaluation of how to maximize of the constitutional purpose of promoting progress. That is simply not the reality of what (solely, or even predominantly) drives copyright policy, at least in present times.

Devlin–
“Do you think the Constitution demands this minimization of the burden [of copyright on the public]?”

Yes. The limited times clause is an excellent example. Limiting the term of copyright certainly wouldn’t help the author to whom the copyright was granted, but the Constitution demands that we do so anyway. Why would it be there otherwise?

“I think [formalities to require publication as a prerequisite for copyright] are reasonable suggestions, but do you think the Constitution demands them?”

I’m not sure how we would promote the progress of science without publication. Secret knowledge is basically moot. If you can think of a way to do it, then perhaps, but as I see it if our copyright law is required to promote progress, publication is necessary. Oh, some minimal level of publication for yet-unpublished works may be prudent, so as to give the authors time to finish them and prepare them for publication, shop them around, keep manuscript pirates at bay, etc. But this is getting into the realm of necessary and proper. Copyrights for works that are not intended to be published and if the author has his way never are, are just wasteful. In such cases science makes more progress thanks to the distributive efforts of the pirate than it does from the tightfisted author.

“You think Hegel is incompatible with free speech?”

I think that copyright is fundamentally opposed to free speech, is what I was saying. If we do not adopt the ever-alluring free speech absolutist position, we may accept that from time to time small infringements on our free speech may be made, but who would ever accept such a thing if it did not benefit them?

OTOH, I think the Hegelian theory of copyright stands on very shaky ground.

“So you think noneconomic benefits are permissible, but only if they are incidental to the incentivization function. In other words, never for their own sake. Is that right?”

“The public doesn’t just shoulder the burden, it gains many benefits too—even while the copyright is in effect.”

I know that there are benefits while the copyright is in effect too. But they pale next to the benefits enjoyed when the work enters the public domain.

“But I don’t see why you think the public should never bear any more burden than is absolutely necessary for incentivizing creation and dissemination.”

I am willing to wash your car for $10. Do you not see why it would be a bit foolish of you to propose as a counter offer that I wash your car for $10,000? I’d agree to that, and I’d be happy about it, but your family might not be so pleased. And you’d not get a wash that was a thousand times better, I assure you.

“As long as the copyright system on the whole promotes progress generally, why couldn’t the recognition of certain fundamental rights of authors be a part of that system?”

The expenditure of public resources should be handled efficiently. If authors are willing to create without, say, moral rights, or egregiously long terms, what advantage does the public get from giving these things away? We’re not made of copyrights! Promoting progress generally is good; it’s better than a copyright system that is so bad that it is literally worse for the public interest than having no copyright system at all. But if it’s possible to measure these things, even approximately, then we should use that ability to seek out a copyright system that promotes progress more than any alternative. If this means granting more rights, fine. If it means granting different rights, also fine. If it means reducing rights, equally fine.

“The view that authors are just members of the Borg collective working for the common good troubles me. They’re human beings too, and they have dignity interests that deserve protection.”

Absolutely. I’m not suggesting, even for a second, that we force singers to sing, or painters to paint, or authors to auth.

We know for a fact that some of them will do it without copyright. What I’m suggesting is that we offer bribes to the rest. Some will accept, and some won’t. We may want to vary the size of the bribe offered, but eventually we’re apt to come to a point where the cost of the bribe would exceed to us the value of the work, and then we must decline, and learn to live without the work being created and published.

The choice of whether and what to create and publish should always be up to the author. Copyright exists to make the choice that the public wants more attractive. It’s all carrot, no stick.

“Where in the Copyright Clause does it say that the fundamental rights of authors can’t be recognized and protected?”

In the First Amendment. I have a fundamental right to copy, to distribute, to prepare derivatives, etc. It can’t be reconciled with the idea of a fundamental right to prohibit people from doing those things. There are no fundamental rights of authors qua authors.

“But the fact remains that copyright policy has never been formulated solely on some utilitarian function.”

Well, I think that they’ve always been alleged to have, but it was a case of the spirit being willing while the flesh was weak.

“To me, this is just treating the author as a member of the Borg collective.”

I absolutely don’t see how. I see it as treating the author like an ass. Maybe the ass will pull the cart to market on his own initiative. If he doesn’t, you dangle the carrot in front of him. If the carrot’s too small, or otherwise not enticing enough, the ass won’t pull. If you have to dangle too many carrots, you won’t have enough to sell at market, making the entire trip a waste. There’s an optimal point.

“The Clause literally says Congress can give benefits to authors.”

No, it says that if Congress is going to give benefits, then the benefits have to go to authors. There’s a subtle difference. It’s not that authors are better people. It’s that if you want to incentivize the creation and publication of works, by giving something to someone, the best choice of someone is the author. The alternative would tend to be either a publisher (who will just exploit the author to get what he wants anyway, if the author doesn’t self publish, so it matters little) or a total stranger, which would be unlikely to incentivize anything.

All that part of the clause does is to stop the Stationers from openly controlling the system. Instead they must use authors as their catspaws, which took them all of five seconds to master. It’s not a great improvement, but it’s something.

U.S. Const., Art. 1, S 8, cl. 8. This clause is frequently referred to as either the Patent Clause, the Copyright Clause, or the Intellectual Property Clause, depending on the context in which it is being discussed.

Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, n.1 (1994).

***

The Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Congress recently has been chafing at the limits imposed by the Intellectual Property Clause.

The Constitution contains several express grants of power to Congress, among them the Intellectual Property Clause and the Commerce Clause. Under the Intellectual Property Clause, Congress is empowered “to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const., art. I, § 8 cl. 8.

The Constitution’s IP clause grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. Art. I, § 8, cl. 8. Accordingly, the IP clause provides Congress with the power to grant a limited monopoly through copyrights or patents to authors or inventors for their particular writings and inventions.

The Intellectual Property Clause of the Constitution states that: “The Congress shall have Power … To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I, § 8, cl. 8. The Intellectual Property Clause employs a parallel structure that both grants and limits copyrights and patent rights. Thus, the use of the term “science” relates to copyrights and is generally given its eighteenth century meaning of knowledge or learning.

Some scholars suggest that Webster’s “close proximity to the Constitutional Convention coupled with his familiarity with the delegates makes it likely that he played some indirect role in the development” of the Constitution’s Intellectual Property Clause—a Clause that established not only the power to create patents but also copyrights, a subject in which Webster had great interest.

Because we conclude that Congress’s retroactive elimination of the qui tam provision from § 292 does not violate the Due Process Clause or the Intellectual Property Clause of the Constitution, we affirm.

Brooks v. Dunlop Mfg. Inc., 702 F.3d 624, 626 (Fed. Cir. 2012).

***

The Constitution provides, “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; ….” U.S. Constitution, art. I, § 8, cl. 8. This Intellectual Property Clause (“IP Clause”) “is both a grant of power and a limitation.”

Tell me if i’m wrong, but i believe the disconnect between anon/Greenfield and well… everyone else… is that they believe the public benifit come soley (or perhaps mostly) from the ‘public domain’. Is my understanding correct? Have we not enjoyed tremendous progress since the copyright act? I know you would disagree, but i believe that a large part of that progress is precisely because we have the copyright act. For proof… just look at countries that have no or weak protections for creators.

There is substantial benefit that comes when work enters the public domain, but there is certainly also public benefit before works enter the public domain. Neither “Anonymous” nor I have suggested otherwise, and neither of us have suggested that copyright protection shouldn’t exist — so looking “at countries that have no or weak protections” doesn’t demonstrate anything, with respect to what we’ve said.

What we have suggested is that the purpose of the copyright act is maximize “public benefit” as you call it, and our copyright policies should be driven by that.

Think of it this way. Today, we have copyright terms that last roughly 100 years. Suppose the law were changed to double copyright terms to 200 years. Exactly how many additional/better works would that change encourage? How many potential authors who declined to create a work when copyright lasted only 100 years would decide to create a work because the term had been extended to 200 years? How many authors who were already creating works with a 100 year term would work even harder to produce more and better works because the terms were now 200 years? How much more would companies invest in creating new works because the term had been extended from 100 years to 200 years?

The only serious answer to each of those questions is “Zero.”

So if we extend terms from 100 years to 200 years, we get zero incremental benefit in terms of encouraging new and better works. On the other hand, we will get very significant detriments by delaying the entry of works into the public domain for another 100 years.

No benefits and significant detriments make for a very easy balancing. There would be no justification (consistent with the constitutional purpose of copyright) for such a change.

This is essentially what has happened as we have steadily increased copyright terms from the original maximum of 28 years to the current ~100 years (from publication, that is). The changes we have been making have not served to encourage more or better works. They have only served to grant copyright holders additional profits, not necessary to encourage their work, at the expense of the public. There’s a reason that the last copyright extension act was referred to as the “Mickey Mouse Protection Act” — because the purpose it served was to grant large corporate interests, and notably Disney, continued exclusivity to works that had been created many decades earlier. (It was not by accident that this extension came just in time to prevent the first version of Mickey Mouse (Steamboat Willie) from entering the public domain.)

Neither “Anonymous” nor I have suggested that we shouldn’t grant copyright protection to encourage works. We’re merely saying that copyright policy is supposed to be driven by maximizing the public benefit from those works, and actual copyright policy has diverged quite far from serving that purpose.

I’ve never once heard anyone suggest making copyright last 200 years, so thats a strawman you can argue with yourself. Thanks for clarifying your position though… i had you confused with someone else making that argument.

–i believe that the benifit to the public comes from encouraging publication. I might add our current climate of ‘steal until your mouse button wears-out’ has actually hampered that goal. I know more than one person that refuses to publish in this climate, as a matter of principal. I can also personally count several projects that were never realized for this same reason. Hopefully a revisit to the clause can help secure better market conditions for all, and clarify some of the murkiness that has developed of late.

Yes, that was a hypothetical to explain the point. But the same principle applies, to the various term extensions that have been enacted over time.

As a simple example, when the last extension increased corporate copyright terms from 75 years to 95 years, the net present value of income 75 years out at a 8.5% discount rate (the estimated cost of capital for the entertainment industry) is 0.1%. That’s a tenth of a percent. So $100 earned 75 years in the future is worth 10 cents today. Coupled with the fact that, for virtually all works, the potential income 75 years out is already a tiny fraction of what its potential income is around the time of publication (even adjusted for inflation), and it should be very clear that having that extra 20 years tacked on offers no additional incentive at all. (In fact, when companies evaluate projects — not just talking entertainment now — they don’t even bother to project past 20-30 years, precisely because the discount rate makes such negligible.)

As for piracy, I certainly don’t countenance that. But that’s obviously a very different impact to authors’ incentives. What I’m talking about is the adoption of policies that burden the public, without a corresponding benefit due to increasing the incentives to create and disseminate creative works.

So would you say if we comprised and made the term length say 50 years, but in return we got a major increase of enforcement (which i might add is the governments job to enforce their laws in the first place) that to you would be a ‘win-win’?
I won’t totally concede that (for the individual) the term length isn’t an effective incentive. One sacrifices and risks a very great deal to go into the creative industries even in the best of climates (there is a reason that parents discourage their children from being a musician..) Knowing if i make something valuable, i can hand that down to my children is incentive; and the term extensions correlate to longer life-spans.

AudioNomics–
“Knowing if i make something valuable, i can hand that down to my children is incentive”

Ah, it’s the widows and orphans argument. That’s an old favorite.

I ask you then, what are the odds that you will create a work which is valuable? Further, not just that the work is ever valuable, but that the work retains value long enough for it to still be valuable when your children might take possession of it?

I will answer my own question, and tell you that frankly, the odds are not good. Most creative works have a copyright value of zero; their copyrights will never be worth anything. Of the relatively small number of works which remain, most of them will follow the usual trend: their copyrights will have a moderate amount of value for a short span of time. This can be a very short span of time — a daily morning newspaper is basically birdcage liner in a day, a typical novel will sell almost every copy it will ever sell in about 18 months, and even the works with the longest average lifespans, which is probably movies, maybe math textbooks, go from first run theaters to airing on UHF stations at 3 in the morning in around about 15 years, I’d say.

These are usually not something to leave to your kids to provide for them when you no longer can. But you’re quite lucky to get that far; the world is full of perfectly good books that never get published and movies that never get made.

You’re thinking of the rarest of rare works, those which retain copyright-related economic value for a long period of time. Most authors are never so lucky as to make one. It’s like winning the lottery; people win all the time, but hardly anyone that plays wins at all. And the people who do get those big bucks might appreciate policies that let them keep it (like cutting capital gains taxes), but that doesn’t really do much for most people.

It’s nice to have dreams, but if you’re worried about the financial security of your family, you need to be more level headed! You need to save your money, invest it wisely, take out a hefty life insurance policy, vote for politicians who support social welfare programs (just in case your family needs that safety net), and so forth. And the great thing is, this sort of thing is good advice for everyone, and is helpful for people who might not happen to be authors that rely on copyrights (which is to say, lots more people than would be helped by long term lengths).

Relying on long copyright terms to keep your family financially secure is as silly as leaving them a whole big box of scratchers when you die. Your intentions are admirable but that’s not good enough. Better to be realistic.

“the term extensions correlate to longer life-spans”

Patent terms have climbed a total of 6 years since the first patent law in the US. (In fact, at one point, they were reduced!) And design patents never did get longer terms, IIRC. Are you telling me that inventors (and ornamental designers) die at younger ages than authors do?

So would you say if we comprised and made the term length say 50 years, but in return we got a major increase of enforcement (which i might add is the governments job to enforce their laws in the first place) that to you would be a ‘win-win’?

No, these are two separate issues. If I don’t believe that extending copyright terms from 50 years to ~100 serves any benefit at all in terms of encouraging the creation and dissemination of works (and in fact, I don’t), then it makes no sense to suggest that such should be traded for something else. It doesn’t serve the purpose of copyright, and should simply be eliminated, without any strings attached.

We should separately evaluate any proposals to address piracy, for whether they make policy sense.

I won’t totally concede that (for the individual) the term length isn’t an effective incentive. […] Knowing if i make something valuable, i can hand that down to my children is incentive;

If you make something valuable, as “anonymous” points out, in virtually all cases, nearly 100% of the economic value is going to be realized relatively quickly after publication, not 100 or 75 or 50 or even 25 years later. (The economics don’t change because the author is an individual, vs. a corporation.)

If your motivation is to hand something down to your kids, then you have take what you earn early on and save or invest some or all of it, and hand that down to them.

As “anonymous” notes, your chances are better of hitting the lottery than that you will create a work that will have significant value 50 or 75 or 100 years after publication. I don’t think it’s reasonable to believe that such provides an incentive to create works any more than people would try to provide for their kids by buying a lottery ticket for a lottery to be drawn in 50 years.

But if anybody seriously believes that this does provide a major incentive, then I would suggest that it would be better for the copyright office to run lotteries, and to issue parties that register a copyright a ticket for a lottery to be drawn in 50 (or 30, or 75, or whatever) years.

One sacrifices and risks a very great deal to go into the creative industries even in the best of climates (there is a reason that parents discourage their children from being a musician..)

This actually goes counter to your argument. Somebody who is sacrificing a great deal (and ignoring their parents’ advice!) is the least likely to be making decisions based on potential for future profit. Such people are driven primarily by a passion for what they are doing. These passionate artists might well be affected by whether they can earn enough to support themselves in the present, but they are unlikely to be (significantly) motivated by the possibility of big profits in the future (for either themselves, or their progeny).

and the term extensions correlate to longer life-spans.

Longer life spans have nothing to do with the period of time in which significant economic value is generated from works. (And for the record, life spans have certainly not more than tripled since the first copyright law, nor have life spans ever extended beyond death, let alone 70 years beyond death!)

In fact, this point is relevant only to a model in which economic reward to the author is a purpose not merely a means. i.e., it implies the notion that people are entitled to profit from and completely control their works for so long as they live, and then some. But for the reasons I provided in earlier comments, the notion of author entitlement is not consistent with the constitutional basis for copyright.

AudioNomics–
“I’ve never once heard anyone suggest making copyright last 200 years”

Well, you’re young yet. Once upon a time you would never have heard anyone suggest making copyright last for life+50, and then life +70, or life+100 (as is the case with Mexico, and IIRC there have been proposals for this floated elsewhere too). The CTEA was only for 20 years, so Steamboat Willie is currently due to hit the public domain at the beginning of 2024. Would you care to make a bet that we’ll see another retroactive extension before then? Plus of course, Congresswoman Mary Bono infamously suggested that since a term of forever would be unconstitutional, it might be possible to have a term of forever minus a day.

“i believe that the benifit to the public comes from encouraging publication”

That’s certainly a very important benefit, and I guess I can take your opinion then to be that we should not grant copyrights to unpublished works (or at least to works which aren’t being prepared for publication). But there are others.

It’s beneficial to have works created; to use and enjoy works; to use works as material to create new derivative works; to share works with other people by making and distributing copies, or by public performance or display.

The fundamental tension is that if there is a copyright which is used to prohibit people from doing what they would with works unless they pay the author enough money to get permission, then they — that is, the public — cannot enjoy all of the benefits associated with the work. And since there’s only so much money available, some benefits simply don’t get realized until the work enters the public domain and permission and money — at least in the form of payments to the author — cease to be factors.

“I know more than one person that refuses to publish in this climate, as a matter of principal. I can also personally count several projects that were never realized for this same reason.”

Doesn’t bother me. As I said, creation and publication are great, and we do want to incentivize them. But only up to the point where it makes sense. An example: Let’s say that I write a book but refuse to publish it because I don’t find that a copyright offered under the current law would be sufficient, much like your acquaintances. But I say that the least amount of copyright which would be necessary to get me to publish would be one in which everyone in the world has to pay me half of everything they own, annually, forever. (The book is called ‘Zeno’ and it is just that good IMO)

Should the world be reordered to suit my whim, simply because I am an author and I demand it? But perhaps the response would be that while people would like to read my book, they’re not going to pay that much, and if that means they have to go without, then so be it; they’ll live, somehow.

There is a point where the cost of copyright is greater than the benefit that would be received from having works created and published that require that level of copyright. In such circumstances, the sensible thing to do is to regret the loss of the works, but to scale copyright back to be more reasonable. Further, we may even want to scale copyright back further from such a brink, to find the point where it incentivizes the most creation and publication for the fewest and shortest-lived limits on the public, and thus provides the greatest bang for the public buck.

And so your friends might never be willing to publish and I am okay with that. A sensible copyright law is more important than their work, much as I’d love to see it published, whatever it is.

“Chances are” ” like winning the lottery”
Well gee wiz, i must be a “lottery winner…” as this is my day job. The problem is you all are talking theoreticals and i’m talking my livelihood…this stuff effects me in a very real way.
Truth is i don’t give a shit about Steamboat willie.. besides Mickie Mouse being covered by Trademark, so i don’t buy into your unfounded hype there.

Blah blah people can’t make mash-ups without permission… THERE WOULDN’T BE anything (worthwhile) to mash up in the first place. Please for the love of God, show me all this top 10 Creative Commons creations…

Furthermore, i find it highly insulting equating a career in the biz to “winning the lotto”.
That’s like saying “you won the lotto” by being a lawyer or a doctor. Doesn’t that greatly diminsh the hard work and dedication and half your live in school? ditto…
Succees is no secret. But, i’m sure you would say it has nothing to do with dedicating every waking moment for over three decades since i was four years old, every last dime i ever saved, working hours you couldn’t keep pace with even if you lived three lifetimes… but you know best *rolls eyes* yup, it’s just like the lotto…. Sure, not everyone is born with the same inherent talents, but talent gets you exactly bunk without blood, sweat, and tears. So please keep that bullship to yourself.

Nobody equated “being in the business” to winning the lottery. Producing a work that is still earning significant profits 50 or 75 or 100 years after initial publication is what was likened to winning the lottery. It rarely happens.

As for dedicating every waking moment, and every last dime, for more than three decades since you were 4 years old — sounds admirable, but are you telling us you did such only because of the incentives created by having copyright terms that extend 50 or 75 or 100 years past publication?

Or is the reality that you do what you do primarily because you are extremely passionate about it, and even if copyright terms were still limited to 28 years (hell, even if they were limited to less than that), you’d still be doing the same thing?

Yes i would still create no matter the term length, BUT, once you start a family, the term length is incentive to stay in business IE, to even publish at all… So only persons under a certain age should be eligable?
Before i go further, let’s clear something up..there are greatly varying product cycles, to put them all in the “all earn in the first…” length of time is only accurate for specific genres, and not as a whole. There are other genres besides Beiber and Gaga…

And you’re right, there is no such thing as entire radio stations dedicated to playing oldies. There’s no older songs getting licenced for film and advertising. What am i thinking… you must be privy to all tax returns for all the musicians and composers out there, that you would know the profitable years. What planet are you from again?

Again, the economics are simple. Almost without exception, the farther you go out in time from publication, the less revenue gets generated from a work. In addition, the net present value of those (much lower) future earnings (i.e., their value around the time the author is making a decision whether or not to invest effort in creating the work) drops off very quickly the farther out in time you go. The result of which is that potential earnings 100, 75, 50, even 25 years out are a tiny percentage of the total potential value of the work.

You acknowledge what the honest reality is: you’d prefer for terms to be longer, but if copyright terms reverted to the original 28 year maximum, you’d still do what you do.

Any objective analysis would conclude that extending the term out further, as we’ve done, has, at most, a very, very small effect in motivating authors. More likely, it has no effect at all.

And as “anonymous” pointed out, it’s not the purpose of the copyright system to make sure every possible incremental work is motivated, regardless of the cost. So even if there were actually some small incremental effect attributable to increasing terms beyond 28 years, it’s hard to imagine it could possibly be enough to justify the detriment of holding the works out of the public domain for decades longer.

And at that, I expect we’ve probably exhausted this exchange, so feel free to have the last word, but I probably won’t reply.

sorry if I come off as hostile, it is a passionate subject, and I don’t mean to offend.

Creating isn’t free. there is significant expenses in both time and money… Sure, digital distribution costs are down, but distro costs were n e v e r part of the cost of creation.
There are many hands in the pie, whether label or indie, there are hands. I don’t see why the songwriter or artist has to give up his portion to Google or another tech company leech after 28 years, as a short term would do. Especially with the reversion clause being thirty years out.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.